Moret v. Mahmoud

























Filed 5/17/13 Moret v. Mahmoud CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
FIVE




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LEUREN MORET, Plaintiff and Appellant, v. SHAYMAA MAHMOUD, Defendant and Respondent.	A133915 (Alameda County Super. Ct. No. RF11598961)
LEUREN MORET, Plaintiff and Appellant, v. EDGAR DELOA, Defendant and Respondent.	A133918 (Alameda County Super. Ct. No. RF11598962)

The Alameda
County Superior Court issued a temporary
restraining order (Code Civ. Proc., § 527) at appellant Leuren Moret’s
request, against respondents Edgar DeLoa and Shaymaa Mahmoud. Following hearing, however, the trial court
denied Moret’s request for a protective order under the Elder Abuse and
Dependent Adult Civil Protection Act (Elder Abuse Act) (Welf. & Inst. Code,
§ 15600 et seq.).href="#_ftn1"
name="_ftnref1" title="">[1] In these consolidated appeals, Moret, in
propria persona, contends that the trial court violated her href="http://www.fearnotlaw.com/">right to due process of law in denying
the protective order. We affirm.

I. Statutory
Background

The Elder Abuse Act was enacted to protect elders and
dependent adults from abuse, neglect, and abandonment. (§ 15600, subd. (a).) An “elder” is any person 65 years of age or
older. (§ 15610.27.) “Abuse of an elder or a dependent adult”
means either of the following: “(a)
Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or
other treatment with resulting physical harm or pain or mental suffering.
[¶] (b) The deprivation by a care custodian of goods or services that are
necessary to avoid physical harm or mental suffering.” (§ 15610.07.) Section 15610.63 provides, in relevant
part: “ ‘Physical abuse’ means any
of the following: [¶] (a) Assault, as defined in Section 240 of the Penal
Code. [¶] (b) Battery, as defined in Section 242 of the Penal Code.”

The Elder Abuse Act authorizes the superior courts to grant
protective orders. At the time of the
subject hearing, the operative version of section 15657.03 provided, in
relevant part: “(a) An elder or
dependent adult who has suffered abuse as defined in Section 15610.07 may
seek protective orders as provided in this section. [¶] . . .
[¶] (c) An order may be issued
under this section, with or without notice, to restrain any person for the
purpose of preventing a recurrence of abuse, if an affidavit shows, to the satisfaction of the court, reasonable
proof of a past act or acts of abuse of the petitioning elder or dependent
adult. [¶] (d)(1) Upon filing a petition for protective orders under
this section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to the
extent this section provides a rule that is inconsistent. . . . . [¶]
. . . [¶] (2) If a temporary restraining order is granted
without notice, the matter shall be made returnable on an order requiring cause
to be shown why a permanent order should not be granted, on the earliest day
that the business of the court will permit, but not later than 20 days or, if
good cause appears to the court, 25 days from the date the temporary
restraining order is granted, unless the order is otherwise modified or
terminated by the court. [¶] (e) The court may issue, >upon notice and a hearing, any of the
orders set forth in subdivision (b). The
court may issue, after notice and hearing,
an order excluding a person from a residence or dwelling if the court finds
that physical or emotional harm would otherwise result to the petitioner
. . . . [¶] . . . [¶] (g) Upon the filing of
a petition for protective orders under this section, the respondent shall be
personally served with a copy of the petition, notice of the hearing or order
to show cause, temporary restraining order, if any, and any affidavits in
support of the petition. Service shall
be made at least five days before the hearing.
The court may, on motion of the petitioner or on its own motion, shorten
the time for service on the respondent.”href="#_ftn2" name="_ftnref2" title="">[2] (Stats. 2008, ch. 480, § 2,
p. 3381, italics added.)

II. Factual and
Procedural Background

At the
outset, we observe that both Moret, in her opening brief, and DeLoa and
Mahmoud, in their respondents’ briefs, refer to facts outside the appellate
record. In addition, they have all
attached documents to their briefs that are not included in the record. We disregard these references. (Cal. Rules of Court, rule 8.204(a)(2)(C)
& (e)(2)(C); Kendall v. Barker (1988)
197 Cal.App.3d 619, 625.)

Moret, who
is 66 years old, rents an apartment in Berkeley. Beginning August 1, 2011, DeLoa and Mahmoud
subleased a room within that apartment.
Following an incident in early October 2011, when DeLoa and Mahmoud
allegedly shoved Moret into a piece of furniture, Moret filed a request for
orders to stop elder or dependent adult abuse.
Moret also requested a temporary restraining order. Based on Moret’s filing, a temporary
restraining order was issued. DeLoa and
Mahmoud were ordered to move out and to stay at least 100 yards away from
Moret.

DeLoa and
Mahmoud filed written responses to Moret’s request for a protective order. DeLoa and Mahmoud both denied striking or
pushing Moret. On November 4, 2011,
a hearing was held on the protective order request. The parties were sworn as witnesses, but no
formal testimony was taken. Moret was
asked: “Is there anything that you would
like to add to your moving papers above and beyond what you have already
stated?” Moret said she had “drugs and
drug paraphernalia” that she would like to submit as evidence. She added:
“I will surrender the drugs, but I want immunity from the D.A., or
whoever, because my fingerprints are on the container.” The trial court responded: “All right.
Well, I can’t help you with those.
Okay. I’m not a D.A. So, why don’t we just leave that be for the
time being.”

Thereafter,
the trial court acknowledged that it had received the respondents’ responses,
which were described as “fairly detailed denial[s] with respect to each
allegation.”href="#_ftn3" name="_ftnref3"
title="">[3] DeLoa informed the court that they had
brought copies of “the checks and picture.”
The court asked DeLoa to hand the copies to the deputy “so I can take a
look at those.” The court then
asked: “Why do you still want to live
there?” DeLoa testified: “Your Honor, we have been wanting to move out
since before. We called the police on
October 4th, because [Moret] locked us out.
And about a week and a half before that, we told her we wanted to move
out. We gave her a 30-day notice. [¶]
. . . [¶] So, we have been wanting to move out for a while.
[¶] On October 4th, when the police arrived, [Moret] said our previous
conversation of our 30-day notice, she was going to invalidate that. So, we had to give her a new 30-day notice on
October 4th. So, we have been wanting to
move out, but she’s been catching us on technicalities and hasn’t let us.” Moret also confirmed that she wanted DeLoa
and Mahmoud out. The parties confirmed
that they were no longer living in the apartment.

At the
conclusion of the hearing, the trial court concluded: “The requested relief is denied.” Moret filed timely notices of appeal, which
were consolidated for decision.

>III. Discussion

“[A]
protective order under the Elder Abuse Act may be issued on the basis of
evidence of past abuse, without any particularized showing that the wrongful
acts will be continued or repeated.” (>Gdowski v. Gdowski (2009) 175
Cal.App.4th 128, 131.) The petitioner
bears the burden of establishing his or her case by a preponderance of the
evidence. (Id. at p. 138.) “We
review the issuance of a protective order under the Elder Abuse Act for abuse
of discretion, and we review the factual findings necessary to support the
protective order for substantial evidence.”
(Id. at p. 135.) “We resolve all conflicts in the evidence in
favor of respondent, the prevailing party, and indulge all legitimate and
reasonable inferences in favor of upholding the trial court’s findings. [Citation.]
Declarations favoring the prevailing party’s contentions are deemed to
establish the facts stated in the declarations, as well as all facts which may
reasonably be inferred from the declarations; if there is a substantial
conflict in the facts included in the competing declarations, the trial court’s
determination of the controverted facts will not be disturbed on appeal. [Citation.] [¶] . . . Section
15657.03 does not require findings to be made by clear and convincing evidence;
therefore, a preponderance of the evidence is sufficient. [Citation.]”
(Bookout v. Nielsen (2007) 155
Cal.App.4th 1131, 1137–1138, fn. omitted.)

Moret does
not contend that the trial court abused its discretion in denying her request
for a protective order. Rather, her
position is that the trial court’s abbreviated hearing violated her rights to
due process of law. Specifically, she
complains that the trial court did not conduct a full evidentiary hearing, did
not allow cross-examination of witnesses, did not allow for discovery, did not
prepare written findings of fact or reasons for its decision, did not postpone
the hearing after she stated she had not received DeLoa’s and Mahmoud’s
responses, did not appoint counsel to represent her, rejected the evidence she
offered, and prejudged the merits.

We quickly
address the last three contentions.
First, Moret had no due process right to appointed counsel in this
case. There is no general due process
right to appointed counsel for indigent litigants in civil cases. (White
v. Board of Medical Quality Assurance (1982) 128 Cal.App.3d 699, 707; >Chevalier v. Dublin (1980) 104
Cal.App.3d 975, 978–979.) Second, we are not troubled by the
court’s exclusion of the drug paraphernalia Moret offered as evidence. The issue before the trial court was whether
there was reasonable proof of DeLoa’s and Mahmoud’s alleged past acts of abuse
toward Moret. (§ 15657.03,
subd. (c).) The
respondents’ purported possession of drug paraphernalia is irrelevant. The trial court acted within its discretion
to exclude such evidence. (See Evid.
Code, §§ 350, 352.)

In
asserting judicial bias, Moret relies on the fact that one version of the
November 4, 2011 minute order,
appearing in the record, is stamped by the clerk of the superior court with the
date “November 2, 2011.” However, other
versions of the November 4, 2011 minute order contain no such stamp. The reporter’s transcript, from November 4,
2011, does not indicate that a ruling had been made before the hearing. And, the register of actions contains no
reference to the order on November 2, 2011.

We will
assume that the November 2, 2011 date appears as the result of clerical
error. “It is presumed that official
duty has been regularly performed . . . .” (Evid. Code, § 664.) That presumption is rebutted only when
“ ‘irregularity is clearly shown.’ ”
(In re Hare (2010) 189
Cal.App.4th 1278, 1292; see People v.
Martinez (2000) 22 Cal.4th 106, 125; In
re Marriage of Drivon (1972) 28 Cal.App.3d 896, 898.) Likewise, we cannot infer bias on the part of
the trial court without it being clearly established by an objective
standard. (People v. Chatman (2006) 38 Cal.4th 344, 363.) Moret fails to meet that burden.

We address
the remaining contentions together, since Moret appears to be arguing, at base,
that the trial court’s abbreviated and informal procedures did not provide her
with due process of law. The trial court
did suggest that it was not interested in receiving oral testimony from the
parties on the matters already contained in their written submissions. But, section 15657.03 mentions only “a
hearing” and makes no mention of receiving testimony. Instead, section 15657.03, in both its
former and current iterations, specifically provides that a protective order
may be granted on the basis of affidavits or declarations. Moret’s request for relief and respondents’
responses were effectively affidavits, as they were signed under penalty of
perjury and purported to set forth evidentiary facts.

To the
extent that Moret is arguing that the abbreviated procedures specifically
provided for by section 15657.03 violate due process, she has forfeited
the argument. First, she never raised
this argument in the trial court. Moret
never requested a statement of decision, indicated that she wished to present
live testimony, or asked to examine DeLoa or Mahmoud. Accordingly, she forfeited the issue by
waiting to raise the issue for the first time on appeal. (See In
re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other
grounds, as stated in In re S.J. (2008)
167 Cal.App.4th 953, 962.) Even on
appeal, Moret only makes a conclusory assertion that her due process rights
have been violated. Beyond citing
various provisions of the United States and California Constitutions, Moret
does not present any reasoned analysis of why her due process rights were
necessarily violated by the trial court’s compliance with the statutory
scheme. (§ 15657.03.) Thus, we need not address the issue any
further. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [if no legal argument
with citation to authority “ ‘is furnished on a particular point, the
court may treat it as waived, and pass it without consideration’ ”].) Moret is not exempt from this obligation
because she represents herself on appeal.
A party who chooses to act as his or her own attorney is “to be treated
like any other party and is entitled to the same, but no greater consideration
than other litigants and attorneys. [Citation.]’ [Citation.]”
(Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246–1247.)

No due
process violation has been demonstrated.

>IV. Disposition

The order
is affirmed. Respondents DeLoa and
Mahmoud are to recover their costs on appeal.







_________________________

Bruiniers,
J.





We concur:





_________________________

Simons, Acting P. J.





_________________________

Needham, J.